Ceglia v. Zuckerberg et al
DECLARATION signed by Alexander H. Southwell re 110 Reply to Response to Motion filed by Mark Elliot Zuckerberg, Facebook, Inc. filed by Mark Elliot Zuckerberg, Facebook, Inc.. (Attachments: # 1 Exhibit A)(Snyder, Orin)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PAUL D. CEGLIA,
MARK ELLIOT ZUCKERBERG and
Civil Action No. 1:10-cv-00569-RJA
ALEXANDER H. SOUTHWELL
I, ALEXANDER H. SOUTHWELL, hereby declare under penalty of perjury that the
following is true and correct:
I am an attorney licensed to practice law in the State of New York and admitted to
practice before this Court. I am a partner in the law firm of Gibson, Dunn & Crutcher LLP
("Gibson Dunn"), counsel of record for Mark Elliot Zuckerberg and Facebook, Inc. ("Facebook")
in the above-captioned matter. I make this declaration, based on personal knowledge, in support
of Defendants' Reply in Support of Defendants' Cross-Motion to Compel Compliance with the
July 1 Order, dated August 15, 2011.
In the Declaration of Jeffrey A. Lake, dated August 10, 2011, Mr. Lake attested
that he and I "did not have a conversation  concerning the residence of Paul Ceglia." Mr. Lake
also denied telling me that "Paul Ceglia did not participate in the production of the Electronic
Assets." Declaration of Jeffrey A. Lake (Doc. No 106-1), ¶ 18.
By way of additional background, following law school at New York University
School of Law, I served as a law clerk to the Honorable Naomi Reice Buchwald of the United
States District Court for the Southern District of New York. From 2001 through 2007, I served
as an Assistant United States Attorney in the United States Attorney's Office for the Southern
District of New York. Currently, in addition to being a partner at Gibson Dunn, I am an Adjunct
Professor of Law at Fordham University School of Law, where I teach a seminar on cybercrimes,
covering computer misuse crimes, intellectual property offenses, computer evidence at trial, data
breach and privacy issues and information security, among other areas. I fully appreciate the
gravity of making a sworn statement under penalty of perjury.
I was surprised and disappointed by Mr. Lake's sworn statements described
above. At best, these statements are the result of a lapse of memory. At worst, they are
To be clear, on July 19, 2011, I had an in-person conversation with Mr. Lake at
the offices of Harris Beach LLC in Buffalo, New York regarding Plaintiff's failure to produce the
specific electronic documents required to be produced by the Court's Order, dated July 1, 2011
(the "Order") (Doc. No. 83) and the Court's Electronic Asset Inspection Protocol, dated July 1,
2011 (the "Electronic Asset Protocol") (Doc. No. 85). In response to my inquiry about his
client's ongoing failure to identify and produce the electronic documents required to be produced
by the Order, Mr. Lake informed me that Plaintiff's computer forensics consultants, along with
an attorney from Edelson McGuire LLC, were working to identify these electronic documents,
and that they would provide those documents to Defendants. I asked Mr. Lake why he did not
simply ask Mr. Ceglia for the locations of the electronic documents required to be produced. Mr.
Lake responded that Mr. Ceglia was not involved with producing the Electronic Assets, adding
that Mr. Ceglia was currently in Ireland. I made a mental note of these statements by Mr. Lake
because I was surprised at his striking admission.
As I noted in my August 4, 2011 declaration, Stroz Friedberg produced to counsel
for Defendants all Presumed Relevant Material not designated as privileged by Plaintiff. The
Presumed Relevant Material included evidence of at least six removable media devices that
Plaintiff did not produce for inspection, some of which appear to have been used subsequent to
the filing of the complaint in this case. The names and serial numbers of the six undisclosed
removal media devices are:
Maxtor 3200 USB Device, 604010193447&0
SanDisk Cruzer Micro USB Device, 200524439016A86122A2&O
USB 2.0 USB Flash Drive USB Device, 76562f5793a65e&o
Ut165 USB2 FlashStorage USB Device, 00000000000069&0
Gigaware USB Device, 20051942520C8D20CDB2&O
Kingston DataTraveler 2.0 USB Device, 5B8407000A4B&O
In its review of the evidence of the undisclosed removable media devices, Stroz
Friedberg located references to several files that appear to be relevant to this litigation, including
two files that are named "Zuckerberg Contract page1.tif" and "Zuckerberg Contract page2.tif" in
a folder labeled "Facebook Files." Plaintiff did not produce these files for inspection. These are
the same type of TIFF image file as "Scan0001.tif" and "Scan0002.tif," the electronic images of
an agreement regarding StreetFax between Plaintiff and Mr. Zuckerberg, dated April 28, 2003,
true and correct copies of which are attached hereto as Exhibit A. See Declaration of Alexander
H. Southwell (Doc. No. 97), ¶ 42A.
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